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When can off the record discussions be used in evidence?

Section 111A of the Employment Rights Act 1996 enables "pre-termination negotiations" to take place between an employer and employee to facilitate discussions. Discussions of this sort, also known as "protected conversations" or "PTNs", are inadmissible in any later unfair dismissal proceedings. However, there are exceptions to this protection, including in relation to automatic unfair dismissal cases (such as whistleblowing, among others) and discrimination claims or where there has been "improper behaviour". Where an exception applies the discussions are not protected and are fully disclosable.
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When can off the record discussions be used in evidence?

Could taking action on climate change result in disciplinary action?

Last week, people all over the world took part in mass rallies as part of a global climate change strike. We consider the business impact, and the employees' right to strike.
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Could taking action on climate change result in disciplinary action?

Be more Japanese? Stepping up to manage automation (like Dentons!)

BEIS published a report on automation and the future of work on 18 September 2019. The report signals that a UK fear of having our jobs taken over by robots has already resulted in the UK lagging behind our international competitors when it comes to automation and robot technologies. Japan on the other hand is forging ahead as a market leader. In 2015 the UK had just 10 robots for every million hours worked, compared with 131 in the US, 133 in Germany and 167 in Japan.
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Be more Japanese? Stepping up to manage automation (like Dentons!)

Employee shareholders – is a new contract enough to make them an ordinary employee?

Employee shareholders have always been rare beasts and may be rarer still if a contractual update meant they became ordinary employees again.
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Employee shareholders – is a new contract enough to make them an ordinary employee?

References – to give or not to give?

There is generally no obligation on an employer to give a reference at all.  There are, of course, exceptions – for example, where unusually there is a contractual entitlement to a reference, or the employer risks victimising or discriminating against an employee by not giving one, or there are Financial Conduct Authority or Prudential Regulation Authority requirements which must be met. In some cases it may be said that an employer has a moral obligation to provide a reference. Either way, the employer’s policy on references must be consistent or it could lead to allegations of discrimination.

Who provides a reference?

References can be given on behalf of a business or in a personal capacity. An employer is legally responsible for the contents of a corporate reference because it is provided on its behalf.  It is therefore advisable to have a policy detailing who can give a reference, in what format and what information it can include. To ensure that a personal reference is not taken as a corporate reference, it should not be provided on headed notepaper or include the referee’s job title.

What information should a reference include?

A reference does not have to be positive, but it must be accurate and true. There is generally no requirement as to the content of the reference, but given the potential liabilities it is common (and usually advisable) for employers to simply give a short statement confirming the facts of employment, such as the relevant dates and the employee’s job title. More detailed references could include information such as the individual’s performance, or absence and disciplinary records. However, any comments about performance or absence should not be related to a disability and you should be mindful of data protection obligations and consent requirements. It is often advisable to provide a reference in writing rather than verbally, as there is less possibility of misinterpretation.

What happens if a reference is inaccurate or unfair?

If the subject of a reference believes that it is inaccurate or misleading and has harmed their prospects of future employment, it may be possible for them to sue their former employer for negligent misstatement or even defamation. The individual may also be able to take the employer (and potentially the organisation which is the recipient of the reference) to an employment tribunal if they think that the negative reference is a result of discrimination.

Employers often include disclaimers in a reference to exclude liability to the recipient for any inaccuracies, but disclaimers will only offer protection to the reference giver if they are reasonable.

Data protection 

The provision of a reference will generally involve the processing of personal data by an employer as a data controller and so, as with all personal data processing, will be subject to data protection principles. It is particularly important, when dealing with references, to have regard to data protection requirements when providing information in a reference about an employee’s health record or reasons for periods of absence, as this will be special category personal data for the purposes of the GDPR.

References – to give or not to give?

Government uncovering the cover-up culture

Since #MeToo brought non-disclosure agreements (NDAs) into the spotlight in late 2017, there has been a flurry of activity from government committees and regulatory bodies seeking to implement change. The most recent activity is a government response on proposals to prevent the misuse of confidentiality clauses that was published at the end of last month.
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Government uncovering the cover-up culture

SMCR optimisation and final rules

The Senior Managers and Certification Regime (SMCR), which was introduced in 2016 to increase the accountability of individuals working in the banking sector, will be extended to the wider financial services industry on 9 December 2019. In preparation for this wider remit, the Financial Conduct Authority (FCA) launched a consultation on its proposed changes to “optimise” the regime. Its final policy statement was published on 26 July 2019.

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SMCR optimisation and final rules

Tribunal issues different decisions for different contracts in IR35 ruling

In the case of George Mantides Ltd v. HMRC [2019] TC07202, a personal services company (the Company) appealed against tax and NIC assessments under the IR35 rules. The First Tier Tribunal (FTT) determined that there were sufficient differences between two engagements for the provision of services for IR35 to apply to one engagement and not the other.

The Company was providing the services of its director, George Mantides, to two hospitals – Royal Berkshire Hospital (Royal) and Medway Maritime Hospital (Medway). At both hospitals, Mr Mantides was a locum urologist. He saw patients according to a rota, ordered and reviewed x-rays, carried out minor surgical procedures and used facilities and equipment provided by the hospitals. Mr Mantides had sufficient expertise to carry out the work with minimal direct supervision and was only required to attend one regular meeting. Both engagements were for a consecutive period of three months, although both were terminated early. There were no agreed provisions for sickness, pension, holiday pay or travel expenses – other than between sites. The Company invoiced hourly and paid for professional indemnity insurance.

In its judgment, the FTT noted the following decisive factors:

• Substitutes: The Company had a written contract with Medway detailing the right to supply a suitably qualified substitute for Mr Mantides. Medway had no right of veto over this. In contrast, there was no written contract between the Company and Royal. The “Locum Booking Confirmations” provided in relation to this engagement made no mention of substitutes.

• Notice: The contract between the Company and Medway could be terminated on one day’s notice. The FTT inferred a requirement of one week’s notice from Mr Mantides’ comments about holiday absences at Royal.

• Hours: Medway was under no obligation to provide Mr Mantides with any hours. The FTT inferred (referring to the Locum Booking Confirmation documentation) that Royal would endeavour to provide Mr Mantides with 30-40 hours of work each week.

Under IR35, it is necessary to consider the terms of a hypothetical contract between the worker and the end client. The question was whether, under each of these hypothetical contracts, Mr Mantides would be considered employed by the relevant hospital or self-employed. The court held that the hypothetical contract with Royal had the characteristics of employment, and the hypothetical contract with Medway, self-employment. Consequently, the Medway contract was not caught by IR35, but the Royal contract was. This case provides an important illustration of some of the factors which will be considered by a court or tribunal in determining the scope of IR35. In this case, it worked in Medway’s favour that there was an express contract detailing the terms of engagement more specifically than the documentation detailing the relationship between the Company and Royal.

Tribunal issues different decisions for different contracts in IR35 ruling

Magistrate who said same-sex adoption not in best interests of a child loses discrimination claims

A Christian magistrate who publicly disapproved of same-sex adoption has lost his claim for religious discrimination and victimisation.
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Magistrate who said same-sex adoption not in best interests of a child loses discrimination claims

Whistleblowing protection: when will a complaint be protected as a qualifying disclosure?

In order to be protected against detriment or dismissal under whistleblowing law, a worker must have made a “qualifying disclosure”. A qualifying disclosure is any disclosure of information which:

• is, in the reasonable belief of the worker, made in the public interest; and

• tends to show that one or more of six specified types of wrongdoing has taken place, is taking place or is likely to take place. The six specified types of wrongdoing include a “failure to comply with a legal obligation”.

As long as the worker reasonably believes that the wrongdoing has occurred it does not matter if that belief later turns out to be wrong.

In Elysium Healthcare No 2 Ltd v Ogunlami UKEAT/0116/18 the Employment Appeal Tribunal (EAT) took a look at the ingredients of this test.

Mr Ogunlami was employed by Elysium as a health care assistant, working on one of its specialist programmes for patients detained under the Mental Health Act. He brought a whistleblowing claim, arguing that he had suffered a number of detriments as a result of having made a series of complaints regarding his supervisor, Ms Miles. The complaints concerned Ms Miles’ conduct in relation to certain patients.

Mr Ogunlami was successful in his claim at first instance. Elysium appealed to the EAT, arguing that the complaints did not amount to qualifying disclosures because Mr Ogunlami had not provided sufficient evidence that his complaints tended to show a breach of a legal obligation. In addition, Elysium argued that the public interest element of the test was not satisfied.

The EAT dismissed Elysium’s appeal. In the EAT’s view, it was apparent that Mr Ogunlami’s complaint amounted to an allegation that Ms Miles was guilty of a breach of a legal obligation – notwithstanding the fact that he had not said this in express terms. It was clear on the evidence that he viewed her behaviour as more than morally wrong or contrary to guidance. He had referred to Ms Miles’ conduct as being a disciplinary matter, a breach of company policy and a safeguarding issue. Not all breaches of policy will amount to breach of an employment contract but, in the EAT’s view, typically they will do so. The evidence was therefore enough to establish a belief on the part of Mr Ogunlami that the information in his complaints tended to show a breach of a legal obligation, namely the breach of an employment contract. The EAT was also concerned to emphasise that whistleblowers should not be expected to use precise legal terminology.

Looking at the public interest element of the test, the EAT was again unpersuaded by Elysium’s arguments. It determined that the mistreatment of vulnerable members of society readily satisfied the public interest requirement.

The public interest test was introduced in order to address the perceived problem of employees bringing whistleblowing claims based on alleged breaches of their own employment terms. The precise boundaries of the public interest test continue to develop. This case is an important reminder that anything capable of amounting to a breach of an employment contract, which also has a public interest element, may still amount to a qualifying disclosure. Where there is the potential for this protection to be triggered it will be important for employers to be particularly careful about how they manage and treat employees who have blown the whistle.

Whistleblowing protection: when will a complaint be protected as a qualifying disclosure?